Subject: Re: BSDL/GPL v3 compatibility
From: "Chris Travers" <chris.travers@gmail.com>
Date: Mon, 3 Sep 2007 09:44:00 -0700
Mon, 3 Sep 2007 09:44:00 -0700
On 9/3/07, dlw <danw6144@insightbb.com> wrote:
>
> Mr Scott commits two fundamental mistakes:
>
> First he confuses the binding "scope" of contractual agreements which
> are privity constrained with the  "scope of use" restrictions in a
> copyright grant of use which is a statutory "right against the World".


IANAL...

I don't know about the scope involved.  The BSDL isn't very clear on this.
Also there are enough varients of the license (some of which do specify that
this includes all downstream individuals who obtain the source code).

The X.org license on the other hand does *not* mention sublicensing
explicitly and begins:
"Permission is hereby granted, free of charge, to anyone...."

Hence it effectively prohibits removing permissions downstream (though
changesets could be under different licenses).  Thus one cannot remove
additional permissions from MIT and X.org licenses merely by saying so.

The ICU library (used for number to text localization) uses a BSD varient
which borrows the downstream licensing wording from the X.org license.  In
this case too, one cannot remove rights merely by saying so.

BTW, I did ask Eben Moglen this question and he seemed to think that
sublicensing was required to use BSDL code in GPL3 applications, but when I
asked about legal mechanism, he never got back to me.  I believe this might
have been because of the fact that the Linux/OpenBSD thing blew up at about
the same time and I know he was involved in that.

Secondly he  fails to appreciate the fact  that  the BSD license is a
> non-exclusive license which cannot authorize a NON-OWNER of a copyright
> to "sublicense" an original copyright owners  work.  The  text  of  17
> USC 106 states:



However, a sublicense is a separate license.  If the license is granted to
all downstream users, and I also grant permission to optionally excersize
the GPL rights (on top of the BSDL restrictions), then this is pretty
meaningless.  Again, in this case, one cannot simply remove rights granted
by saying so since the grant is between the original licensor and the end
recipient.

"Subject to sections 107 through 122 , the owner of copyright under this
> title has the *EXCLUSIVE* rights to do and to authorize any of the
> following: . . ."
>
> Now if someone besides the owner could "authorize" then the sec. 106
> rights wouldn't  be exclusive would they?
>


However, you have two questions:
1)  Who can enforce such authorizations?  Only the copyright holder?  Or
anyone who actually makes the authorization?

2)  Is the *intent* of the BSDL to provide all downstream users with the
license?  If so, does the GPL represent an additional license grant subject
to the restrictions fo the BSDL?  If so, one can always disregard it and
revert back to the original BSDL since those rights are granted *in
addition* to the rights granted by the GPL (which is also subject in this
case to the BSDL restrictions).

IANAL, but it seems that sublicensing would be moot in cases where licenses
had been granted to all downstream users of the code (as is explicitly the
case in some variants).

Best WIshes,
Chris Travers




On 9/3/07, dlw <danw6144@insightbb.com> wrote:
Mr Scott commits two fundamental mistakes:

First he confuses the binding "scope" of contractual agreements which
are privity constrained with the  "scope of use" restrictions in a
copyright grant of use which is a statutory "right against the World".

IANAL...

I don't know about the scope involved.  The BSDL isn't very clear on this.  Also there are enough varients of the license (some of which do specify that this includes all downstream individuals who obtain the source code).

The X.org license on the other hand does *not* mention sublicensing explicitly and begins:
"Permission is hereby granted, free of charge, to anyone...."

Hence it effectively prohibits removing permissions downstream (though changesets could be under different licenses).  Thus one cannot remove additional permissions from MIT and X.org licenses merely by saying so.

The ICU library (used for number to text localization) uses a BSD varient which borrows the downstream licensing wording from the X.org license.  In this case too, one cannot remove rights merely by saying so.

BTW, I did ask Eben Moglen this question and he seemed to think that sublicensing was required to use BSDL code in GPL3 applications, but when I asked about legal mechanism, he never got back to me.  I believe this might have been because of the fact that the Linux/OpenBSD thing blew up at about the same time and I know he was involved in that. 

Secondly he  fails to appreciate the fact  that  the BSD license is a
non-exclusive license which cannot authorize a NON-OWNER of a copyright
to "sublicense" an original copyright owners  work.  The  text  of  17
USC 106 states:


However, a sublicense is a separate license.  If the license is granted to all downstream users, and I also grant permission to optionally excersize the GPL rights (on top of the BSDL restrictions), then this is pretty meaningless.  Again, in this case, one cannot simply remove rights granted by saying so since the grant is between the original licensor and the end recipient. 

"Subject to sections 107 through 122 , the owner of copyright under this
title has the *EXCLUSIVE* rights to do and to authorize any of the
following: . . ."

Now if someone besides the owner could "authorize" then the sec. 106
rights wouldn't  be exclusive would they?


However, you have two questions:
1)  Who can enforce such authorizations?  Only the copyright holder?  Or anyone who actually makes the authorization?

2)  Is the *intent* of the BSDL to provide all downstream users with the license?  If so, does the GPL represent an additional license grant subject to the restrictions fo the BSDL?  If so, one can always disregard it and revert back to the original BSDL since those rights are granted *in addition* to the rights granted by the GPL (which is also subject in this case to the BSDL restrictions).

IANAL, but it seems that sublicensing would be moot in cases where licenses had been granted to all downstream users of the code (as is explicitly the case in some variants).

Best WIshes,
Chris Travers